IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Kelly Robinson,

Case No. 2:12-cv-718 

Plaintiff, 

v. Judge Graham

Nationstar Mortgage, LLC, and Magistrate Judge Abel

NSM Recovery Services, LLC,

Defendants.

OPINION AND ORDER

This matter is before the court on defendants’ motion to dismiss in part (doc. 12). 

Defendants Nationstar Mortgage, LLC (Nationstar) and NSM Recovery Services, LLC (NSM) seek

dismissal of five of plaintiff’s seven counts pursuant to Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim on which relief may be granted. Doc. 12 at 1. 

I. Factual Background

Plaintiff KellyRobinson brings this action pursuant to the Fair Debt Collection Practices Act

(FDCPA), 15 U.S.C. § 1692 et seq. Plaintiff brings three class action counts (I, II, III) on behalf of

herself and others similarly situated, and four counts solely on her own behalf (IV, V, VI, VII). Doc.

1. Defendants seek dismissal of counts I, II, III, V, and VI. Doc. 12 at 1.

This case arises from a series of five letters sent by defendants to plaintiff between June 9,

2011 and February 3, 2012. See docs. 1-1 – 1-7. These letters seek payment on a debt that plaintiff

allegedly incurred through a property foreclosure. In the first letter at issue, dated June 9, 2011,

defendant Nationstar wrote:

Please be advised that Fannie Mae has completed the foreclosure on your property,

and has transferred your account to Nationstar Mortgage LLC to secure payment of

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the remaining balance. This balance, resulting from losses incurred during the

foreclosure process, is an obligation for which you remain personally liable under the

terms of your Note.

Our records reflect your account currently has a deficiency balance of $73,996.90.

Doc. 1-1.

On June 29, 2011, plaintiff responded that she disputed the debt and that she had “not

received a copy of the foreclosure documents, nor paperwork through the mail which reflects a

deficiency balance due and owing by me . . . .” Doc. 1-2. Defendant Nationstar never directly

responded to plaintiff’s June 29 letter, but sent another letter on August 8, 2011:

As you are aware, this claim has been turned over to our office for collection on the

balance due of CKF_AMT. We want to let you know that Nationstar Mortgage LLC

(“Nationstar”) intends to pursue this claim and reserves the right to report this matter

to the Credit Bureaus, as well as pursue all other legal remedies as allowable by state

law. These remedies may include litigation and your settlement opportunities may

be lost.

The process of litigation has not yet been instituted. If it happens, it will be pursued

through a local attorney in accordance with applicable state statutes. Should a

Judgment be issued against you as a result of this process, in some instances, you

could also be charged with court costs and attorney fees. It might be valuable for you

to check the laws in your state pertaining to the satisfaction of a Judgment.

We fully realize that you may contest the merits of this claim. Certainly, it is not our

intent to threaten or alarm you about this matter. We would hope that you take a

moment and seriously consider the consequences of your actions.

Doc. 1-3.

On August 30, 2011, plaintiff again responded that she disputed the debt, and again requested

documentation of the debt’s validity. Doc. 1-4. She requested that Nationstar cease contacting her

until it had provided documentation of the debt and stated that “I find your letter dated August 8,

2011 to be quite threatening by suggesting that I take a moment and seriously consider the

consequences of my actions by contesting this claim.” Doc. 1-4. Again, Nationstar did not directly

respond to plaintiff’s letter, but instead sent a letter dated August 31, 2011, again seeking payment

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of the debt and again invoking the possibility of litigation or other remedies. Doc. 1-5. The final

debt-collection communication in the record was sent to plaintiff on February 3, 2012 from

defendant NSM Recovery Services. Doc. 1-7. This letter looks different from the previous four–it

appears on different letterhead and has a different format. Though it seems to seek collection on the

same debt, it appears to be from a different entity. The February 3, 2012 letter states simply that

“NSM RSI wishes to resolve this matter. Therefore, we are willing to offer you the following deeply

discounted repayment terms.” Doc. 1-7. It then offers three discounted payment plans and offers

the possibility of discussing other options. Id.

Based on the five letters from Nationstar and NSM, plaintiff commenced an action in this

court by filing a complaint which contains seven counts under the FDCPA. Counts I-III are asserted

on behalf of plaintiff and a class of similarly situated individuals, counts IV-VII are brought by

plaintiff solely on her own behalf: Count I alleges that the February 3, 2012 letter from NSM failed

to include notices required by 15 U.S.C. § 1692g(a); Count II alleges that Nationstar is responsible

for the February 3, 2012 communication and misrepresented itself as “NSM Recovery Services” in

violation of 15 U.S.C. § 1692e(14); Count III alleges that Nationstar and NSM violated 15 U.S.C.

§ 1692g(a) by failing to make required disclosures following the February 3, 2012 communication

(Count III appears to overlap with Count I, which brings nearly identical allegations against NSM

alone); Count IV alleges that plaintiff disputed the debt and requested verification, yet Nationstar

continued to attempt to collect on the debt without providing verification, in violation of 15 U.S.C.

§ 1692g(b); Count V alleges that Nationstar threatened to take an action that it could not legally take

or that it did not intend to take, in violation of 15 U.S.C. § 1692e(5); Count VI alleges that by using

“NSM Recovery Services” letterhead and signing the letter “NSM RSI,” Nationstar used a name

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other than its own in an attempt to collect on a debt, in violation of 15 U.S.C. § 1692e(10); Count

VII alleges that after plaintiff disputed the validity of the debt and requested verification, Nationstar

did not verify the debt but continued to communicate with her in an attempt to collect on the debt

in violation of 15 U.S.C. 1692c(c). Doc. 1 at 15-30.

Regarding her class action counts (I-III), plaintiff “seeks to represent three alternative

subclasses of individuals.” Doc. 1 at 11. Each subclass consists of individuals who received a letter

from Nationstar and/or NSM similar to the February 3, 2012 communication. Doc. 1 at 11-12. 

Plaintiff alleges that each class is so numerous as to make joinder impracticable, and that their exact

numbers can be ascertained only through discovery. Doc. 1 at 12. Plaintiff asserts that her claims

“and those of the members of the classes, originate from the same conduct, practice, and procedure,

on the part of Nationstar Mortgage and/or NSM Recovery Services.” Doc. 1 at 13. Plaintiff alleges

that she has “the same interests and has suffered the same injuries as each member of the classes.”

Doc. 1 at 13.

II. Standard of Review

Federal Rule of Civil Procedure 8(a) requires that a pleading contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). When

considering a motion under Rule 12(b)(6) to dismiss a pleading for failure to state a claim, a court

must determine whetherthe complaint “contain[s] sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court should construe the complaint

in the light most favorable to the plaintiff and accept all well-pleaded material allegations in the

complaint as true. Iqbal, 556 U.S. at 679; Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Twombly,

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550 U.S. at 555-56. 

Despite this liberal pleading standard, the “tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556

U.S. at 678; see also Twombly, 550 U.S. at 555, 557 (“labels and conclusions” or a “formulaic

recitation of the elements of a cause of action will not do,” nor will “naked assertion[s]” devoid of

“further factual enhancements”); Papasan v. Allain, 478 U.S. 265, 286 (1986) (a court is “not bound

to accept as true a legal conclusion couched as a factual allegation”). The plaintiff must provide the

grounds of his entitlement to relief “rather than a blanket assertion of entitlement to relief.” 

Twombly, 550 U.S. at 556 n.3. Thus, “a court considering a motion to dismiss can choose to begin

by identifying pleadings that, because they are no more than conclusions, are not entitled to the

assumption of truth.” Iqbal, 556 U.S. at 679.

When the complaint does contain well-pleaded factual allegations, “a court should assume

their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal,

556 U.S. at 679. “A claim has facial plausibilitywhen the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Id. at 678. Though “[s]pecific facts are not necessary,” Erickson, 551 U.S. at 93, and though Rule

8 “does not impose a probability requirement at the pleading stage,” Twombly, 550 U.S. at 556, the

factual allegations must be enough to raise the claimed right to relief above the speculative level and

to create a reasonable expectation that discovery will reveal evidence to support the claim. Iqbal,

556 U.S. at 678-79; Twombly, 550 U.S. at 555-56. This inquiry as to plausibility is “a

context-specific task that requires the reviewing court to drawon its judicial experience and common

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sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’– ‘that the pleader is

entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

III. Analysis

Defendants seek dismissal of Counts I, II, III, V, and VI pursuant to Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim on which relief may be granted.

Count I

15 U.S.C. § 1692g(a) requires that a debt collector make a series of disclosures to a debtor

“[w]ithin five days after the initial communication with a consumer in connection with the collection

of any debt . . . unless the . . . information is contained in the initial communication or the consumer

has paid the debt . . . .” Plaintiff’s first count alleges that the February 3, 2012 communication was

the “initial communication” from defendant NSM, and that NSM was required to make the 15

U.S.C. § 1692g(a) disclosures. Defendants argue that Count I must be dismissed because the

February 3, 2012 letter is not the “initial communication” for purposes of Section 1692g(a) and so

did not trigger disclosure requirements. Plaintiff’s allegations are clear. The February 2, 2012 letter

was the first she received from NSM, but was not the first communication she received relating to

collection of the debt. The viability of Count I depends on whether the first communication from

a subsequent debt collector, where a previous debt collector has sent other communications,

constitutes an “initial communication” for purposes of the FDCPA.

Each party has proffered a handful of non-binding cases that they argue support their

preferred position. There appear to be no binding decisions to guide the Court in determining

whether a first communication from a subsequent debt collector triggers the FDCPA’s disclosure

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requirements. A handful of cases interpret the statute to impose the disclosure only once, on a single

debt collectormaking its initial communication, not on the first communications made bysubsequent

debt collectors. For example, after noting that federal courts had interpreted Section 1692g(a) in

opposing ways, the District of Maryland interpreted the words “the initial communication” to refer

to only one communication: “[H]ad Congress intended that there might be more than one initial

communication with a debtor on a given debt, it certainly could have provided that, such as by

explicitly requiring both initial and successive debt collectors to provide the § 1692g(a) validation

notice.” Senftle v. Landau, 390 F.Supp.2d 463, 473 (D. Md. 2005); see also Nichols v. Byrd, 435

F.Supp.2d 1101, 1107 (D. Nev. 2006) (adopting the Senftle court’s logic). Similarly, in an

unpublished opinion, the Third Circuit Court of Appeals held with little explanation that the

disclosure requirement could only be triggered by a single “initial communication” and that if one

debt collector made the disclosures, subsequent debt collectors were not obligated to do so. Oppong

v. First Union Mortg. Corp., 326 Fed. Appx. 663, 666 (3d. Cir. 2009). 

Other federal courts have come to the opposite conclusion, holding that the statute is

ambiguous and that the purpose of the FDCPA requires an interpretation that provides consumers

with more disclosures, not fewer, in orderto prevent the possibility of facing collection for an invalid

debt. For example, in Stair v. Thomas & Cook, the District of New Jersey found that “[w]hether the

‘initial communication’ in section 1692g(a) refers to each debt collector’s initial communication

with the consumer or only the first debt collector’s initial communication is not answered by the text

of section 1692g(a) alone, as either interpretation is plausible under the language of section

1692g(a).” 254 F.R.D. 191, 196 (D. N.J. 2008). The court interpreted the language of the statute

in accordance with its purpose, “to eliminate abusive debt collection practices which contribute to

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the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of

individual privacy.” Id. at 195 (quoting Wilson v. Quadramed Corp., 225 F.3d 350, 354 (3d. Cir.

2000)). This statutory purpose “makes apparent that section 1692g’s notice requirements apply

equally to the initial communications of first and subsequent debt collectors. . . . [T]he FDCPA’s

purpose . . . would be undermined if subsequent debt collectors were excused from complying with

the [disclosure] requirements . . . .” Stair, 254 F.R.D. at 196. The Court was particularly concerned

that debt collectors could evade the requirements of Section 1692g by making an initial

communication with the required disclosures, then passing the debt off to a subsequent collector

before the end of the period in which the consumer could dispute the validity of the debt or request

verification, as allowed by the statute. Id. Similarly, in Turner v. Shenandoah Legal Group, P.C.,

the Eastern District of Virginia found that “[t]he language [of the statute] does not specify whether

each subsequent debt collector on each separate debt must provide a validation notice.” No.

3:06CV045, 2006 WL 1685698 at *10 (E.D. Va. June 12, 2006). The Turner Court found that the

“overall purpose of the FDCPA is for the protection of consumers as well as the protection of debt

collectors that utilize fair methods” and reasoned that “such purposes can be best promoted by the

interpretation of ‘initial communication’ as [including subsequent debt collectors.]” Id. at *11.

Given that the statutory text may reasonably be interpreted to require or not to require 1692g

disclosures from subsequent debt collectors, and in the absence of any controlling precedent, the

more persuasive interpretation is that section 1692g(a)requires the initial communication from each

debt collector–not just the first debt collector–to comply with the disclosure requirements. The

requirements that debt collectors validate the debt and give the debtor the opportunity to dispute the

debt aim to “eliminate the recurring problem of debt collectors dunning the wrong person or

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attempting to collect debts which the consumer has already paid.” S. Rep. 95-382, 1977 WL 16047

at *4 (Aug 2, 1977). To decline to require subsequent debt collectors to validate the debt on which

they seek recoverywould undercut this goal. It is implausible to think that Congress, concerned with

“dunning the wrong person,” would limit disclosure requirements to a narrow range of debt

collectors–those that are the first to seek recovery on a given debt. Instead, an interpretation that

requires all debt collectors to comply with the validation and disclosure requirements best promotes

the goal of protecting consumers.

Count II

Plaintiff’s second claim alleges that Nationstar is responsible for the February 3, 2012 letter,

and in that letter misrepresented itself in violation of 15 U.S.C. § 1692e(14) byusing NSM letterhead

and signing the letter “NSM RSI.” Doc. 1 at 17. Defendants counter that “Count II fails on its face

because the Complaint does not plead that anything written in the February 3, 2012, letter is false,

deceptive or misleading.” Doc. 12 at 12. This is not correct. The complaint does allege that the

letterhead and signature aremisleading because Nationstar mailed the letter to plaintiff, and the letter

makes it seem as though some other entity did. Doc. 1 ¶ 56. Defendants’ alternatively argue that

“Count IIshould be dismissed because the February 3, 2012, letter is not Nationstar’s letter.” It may

not be, but plaintiff has alleged that it is. See doc. 1 ¶ 56. At this stage of the proceedings, plaintiff’s

factual allegations are accepted as true. Iqbal, 556 U.S. at 679; Erickson v. Pardus, 551 U.S. 89, 93-

94 (2007); Twombly, 550 U.S. at 555-56. 

Count III

Plaintiff’s third count alleges the same violation of 15 U.S.C. § 1692g(a) as Count I, except

she brings Count III against both Nationstar and NSM; Count 1 is against only NSM. Defendants

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argue that Count III must be dismissed for the same reasons as Count I.

Defendant also argues that Count IIIshould be dismissed “at least as to Nationstar, because

the Complaint does not plead facts to show how NSM and Nationstar purportedly acted as a “unified

entity.” Doc. 12 at 13. Plaintiff’s allegations are clear that “Nationstar Mortgage and NSM

Recovery Services mailed Ms. Robinson the February 3, 2012 correspondence.” Doc. 1 ¶ 61.

Plaintiff alleges that Nationstar and NSM are two facets of the same entity: “By using ‘NSM

RecoveryServices’ letterhead and signing the correspondence, ‘NSM RSI,’ Nationstar Mortgage and

NSM Recovery Services was attempting to use their respective corporate identities to shield

themselves from the reach of the FDCPA.” Doc. 1 ¶ 62. It is unclear whether plaintiff alleges that 

Nationstar and NSM are a single or two different entities. But either way, Count III fails with regard

to Nationstar. If they are separate entities, the February 3, 2012 correspondence is clearly from

NSM, not Nationstar. If they are the same entity, then the February 3, 2012 correspondence is not

the “initial correspondence” and the 15 U.S.C. § 1692g(a) requirements are not triggered. Either

way, the February 3 letter does not support the inclusion of Nationstar in Count III. Absent

Nationstar, Counts I and III allege the same misconduct by NSM.

Class Action Allegations (Counts I-III)

Defendants argue that the class relief sought in Counts I through III should be dismissed

because the facts alleged in the complaint do not support the requirements of a class action. Federal

Rule of Civil Procedure 23(a) provides that one member may sue on behalf of a class if “(1) the

class is so numerous that joinder of all members is impracticable; (2) there are questions of law or

fact common to the class; (3) the claims or defenses of the representative parties are typical of the

claims or defenses of the class; and (4) the representative parties will fairly and adequately protect

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the interests of the class.” Additionally, a class action must fall into one of the three requirements

of Rule 23(b) which describes three situations in which a class action is proper. 

Without stating which elements of rule 23(a) and (b) are not satisfied byplaintiff’s complaint,

defendants argue generally that the complaint has inadequate factual allegations. However, plaintiff

does include a number of factual allegations relevant to her class action claims. Regarding the 23(a)

factors: Plaintiff alleges that the class includes numerous individuals who received similar

communications from Nationstar or NSM. Doc. 1 at 11-12. Though she alleges that she can not

identify the exact number of people to receive such a letter, her allegation that they are numerous and

that joinder is impracticable is plausible, and must be accepted as true. Second, the class counts

involve claims and issues that are common to members of the alleged class. If, as plaintiff alleges,

defendants have violated the FDCPA using similar letters sent to many individuals, litigation

involving those individuals will involve common issues of fact and law. Doc. 1 at 12-13. Plaintiff

also alleges specific facts that would demonstrate that hers are typical of the claims and defenses of

the class: “[Plaintiff’s] claims, and those of the members of the classes, originate from the same

conduct, practice, and procedure, on the part of Nationstar Mortgage and/or NSM Recovery

Services.” Doc. 1 at 13. Finally, plaintiff states that she is “willing and prepared to serve this Court

and proposed classes” and that her “interests are co-extensive with and not antagonistic to those of

the absent members of the class.” Doc. 1 at 13.

Similarly, plaintiff argues that Rule 23(b)(3) is satisfied. Under that rule, a class action may

proceed if “the questions of law or fact common to class members predominate over any questions

affecting only individual members, and . . . a class action is superior to other available methods for

fairly and efficiently adjudicating the controversy.” Plaintiff alleges facts that, under the standard

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applicable to a motion to dismiss, are sufficient to state a claim for class relief under Rule 23(b)(3). 

Plaintiff alleges that “common questions of law and fact predominate over questions that may affect

individual member of the classes. Such issues include, but are not limited to: (a) the existence of

Nationstar Mortgage’s identical conduct particular to the matters at issue; (b) the existence of NSM

Recovery Services’ identical conduct particular to the matters at issue; (c) Nationstar Mortgage’s

violations of 15 U.S.C. § 1692 et seq. ; (e) the availability of statutory penalties; and (f) attorney’s

fees and costs.” Doc. 13 ¶ 35. These allegations, taken in a light most favorable to plaintiff, are

sufficient to state a claim for class relief.

Count V

In Count V, plaintiff alleges that defendant Nationstar threatened to take actions that it could

not legally take or that it did not intend to take, in violation of 15 U.S.C. § 1692e(5). Defendants

argue that Count V should be dismissed because the complaint does not identify the action that

Nationstar threatened to take and could not or did not intend to take. “Although the Complaint refers

to letters sent by Nationstar, it does not state what in the letter is the supposedly offending threat of

action.” Doc. 12 at 15. The complaint includes three identical block quotes from three Nationstar

communications–it is clear that plaintiff asserts that the unlawful threat is in the quoted language. 

The three letters state: 

We want to let you know that Nationstar Mortgage LLC (“Nationstar”) intends to

pursue this claim and reserves the right to report this matter to the Credit Bureaus,

as well as pursue all other legal remedies as allowable by state law. These remedies

may include litigation and your settlement opportunities may be lost.

The process of litigation has not yet been instituted. If it happens, it will be pursued

through a local attorney in accordance with applicable state statutes. Should a

Judgment be issued against you as a result of this process, in some instances, you

could also be charged with court costs and attorney fees. It might be valuable for you

to check the laws in your state pertaining to the satisfaction of judgment.

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Doc. 1 at 23-25.

This language contains six references to future action that could be construed as a threat: 1)

Nationstar intends to pursue the claim; 2) Nationstar reserves the right to report to credit bureaus;

3) Nationstar reserves the right to pursue all other legal remedies under state law; 4) Nationstar may

pursue litigation; 5) Plaintiff may lose settlement opportunities; and 6) Plaintiff may be charged with

court costs if Nationstar prevails in litigation. Plaintiff does not indicate which of those items she

alleges to be a threat in violation of 15 U.S.C. § 1692e(5). Nor does she allege, much less present

a plausible reason that Nationstar could not legally take any of the six threatened actions. Plaintiff

only generally asserts that Nationstar threatened to take an action that it could not legally take or that

it did not intend to take. Doc. 1 ¶ 85. Plaintiff has alleged no facts to make it facially plausible that

Nationstar could not and/or did not intend to take any of those six actions. Count V fails to “permit

the court to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679.

Count VI

Like Count II, Count VIfocuses on Nationstar’s alleged misrepresentation byusing the NSM

Recovery Services and NSM RSI names. Plaintiff alleges that Nationstar sent the February 3, 2012

letter, and deceptively used these alternate names in order to attempt to collect on the debt in

violation of 15 U.S.C. § 1692e(10). Doc. 1 at 26-27. Defendants argue that Count VI should be

dismissed because “the Complaint does not plead that anything written in the February3, 2012, letter

is false, deceptive or misleading. A least sophisticated consumer in Ms. Robinson’s position

employing a basic level of understanding and willingness to read with care would simply conclude

from the NSM letter, which references the amount and the same loan number that was the subject

of Nationstar’s prior letters, that another company (NSM) was trying to collect that deficiency

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judgment.” Doc. 12 at 16. But plaintiff alleges that that reasonable conclusion would be incorrect,

because Nationstar, not some another company, sent the February 3, 2012 letter. See, e.g., doc. 1

¶ 93 (“On February 3, 2012, Nationstar Mortgage, using a name other than its own–NSM Recovery

Services–mailed Ms. Robinson written correspondence in connection with its efforts to collect from

Ms. Robinson the alleged debt obtained in default.”). This allegation, accepted as true for purposes

of this order, is sufficient to state a claim for a violation of 15 U.S.C. § 1692e(10).

V. Conclusion

Based on the foregoing reasons, the defendant’s motion to dismiss (doc. 12) is GRANTED

with respect to Count V and Count III against Nationstar; it is DENIED with respect to Counts I, II,

and VI, and Count III against NSM.

IT IS SO ORDERED. 

S/ James L Graham 

James L. Graham

UNITED STATES DISTRICT JUDGE

Date: November 15, 2012

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